Information Note on the Court’s case-law No. 134
October 2010
Saliyev v. Russia - 35016/03
Judgment 21.10.2010 [Section I]
Article 10
Article 10-1
Freedom to impart information
Unjustified withdrawal of copies of municipal newspaper by editor-in-chief following publication: violation
Facts – The applicant, the president of a non-governmental organisation, wrote an article criticising a deal for the acquisition of shares in a local energy producing company by a group of Moscow-based firms which the editor-in-chief of a municipally-owned newspaper agreed to publish. However, a number of copies of the issue containing the article were withdrawn from the news-stands shortly after distribution and later destroyed. The editor-in-chief resigned shortly afterwards. Following a complaint by the applicant to the regional prosecutor’s office, the investigator in charge of the case decided not to open a criminal investigation after finding that the decision to withdraw the copies had been taken by the editor-in-chief in person in order to avoid potential lawsuits. The applicant unsuccessfully challenged that decision in the criminal courts. He also brought civil proceedings which were dismissed on the grounds that, as the owner, the newspaper was free to dispose of copies of the issue as it wished and that there had been no contract between the applicant and the newspaper obliging the latter to distribute the issue containing the article.
Law – Article 10: The Court noted that copies of the newspaper had been withdrawn and destroyed after the article had been accepted by the editorial board, and after it had been printed and made public. After publication, any decision limiting the circulation of the article had to be regarded as an interference with the applicant’s freedom of expression and not as a problem of right of access to the press, which enjoyed only minimal, if any, protection under the Convention. Further, the main reason for the withdrawal had been the content of the article. The Government had conceded that the editor-in-chief had withdrawn the newspapers for fear of possible civil or administrative sanctions. The withdrawal therefore amounted to interference with the applicant’s rights under Article 10.
Although the Court accepted that the withdrawal had been ordered by the editor-in-chief, it nevertheless found on the facts that it amounted to a decision by “public authority” for the purposes of Article 10. In that connection, it noted that the newspaper’s independence was severely limited by the existence of strong institutional and economic links with the municipality and by the constraints attached to the use of its assets and property, which the municipality owned. Though a professional journalist with his own ideas and opinions, the editor-in-chief had been appointed and paid by the municipality and was required by virtue of his status to ensure the newspaper’s loyalty to the municipality. His decision to withdraw the newspaper could be characterised as an act of policy-driven censorship in which he had implemented the general policy line of the municipality as its agent. Further, under domestic law municipal authorities were treated on the same footing as federal or regional bodies for many purposes so that, even if their competence was limited, their powers could not be characterised as anything other than public. The order to withdraw the copies of the newspaper thus constituted interference by “public authority”.
The Court was prepared to accept that the interference was prescribed by law and pursued the legitimate aim of protecting “the reputation or rights of others”.
As to the question whether the withdrawal had been “necessary in a democratic society”, the applicant had reported on a matter relating to the management of public resources that lay at the core of the media’s responsibility and the right of the public to receive information and so attracted maximum protection under Article 10. However, instead of analysing the content or the form of the article to see whether the applicant had exceeded the limits of permissible criticism, the domestic courts had simply treated his complaint as a business matter. Yet the relationship between a journalist and an editor-in-chief was not only or always a business relationship. In the applicant’s case it was not such a relationship, as the newspaper was, according to its own charter, a municipal institution created not as a profit-making business but as a forum for informing the public about local social, political and cultural issues. The domestic courts had effectively based their findings on the mistaken assumption that the case was basically about an owner’s right to freely dispose of his property, without examining the reasons for the withdrawal of the copies or balancing the applicant’s freedom of expression against any other interests that may have been at stake. Accordingly, the decision-making process in this case was deficient and the domestic courts’ decisions had not contained any justification from the standpoint of Article 10 for the withdrawal of the newspaper. As to the critical views stated by the applicant in his article, they had been reasonably supported by facts which had never been challenged and had been expressed in an acceptable form. The withdrawal of the newspapers containing the applicant’s article had, therefore, not been necessary in a democratic society.
Conclusion: violation (unanimously).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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